Advantages and disadvantages of the adversarial system in criminal proceedings by William van Caenegem (e ink epub reader .TXT) 📕

I7 Which is what has given rise to major concerns about the divergence from the legal model, for instance in France: see H Haenel, 'Les infractions sans suite ou la delinquence mal traitee' in Commission des finances [of the French Senat], Rapport d'information (I997/98) 5I3; and to calls for a return to the legal model, for instance in Belgium: see De Smet B, 'Le juge d'instruction: obstructionniste ou acteur indispensab/e dans /e proces pena/?' (I996) 67 Revue Internationa/e de Droit Pena 4I7 [calling for retention and revitalisation of the role of the investigating magistrate (juge d'instruction)].

I8 See the Italian example, as explained in C van den Wyngaert, above n I5, Ch 8: Italy; and in France, where the old Code d'instruction crimine//e of I8O8 was replaced with the Code de procedure pena/e I959, which was revised at various times, with two important revisions in I993, by the laws of 4 January and 28 August of that year. Since then the Commission Justice pena/e et droits de /'homme (otherwise known as the Commission De/mas-Marty after its President) has made further proposals for important changes, notably to the role of the investigating magistrate. For a comment in English on some reforms in France, see S Field and A West, 'A Tale of Two Reforms: French Defense Rights and Police Powers in Transition' (I995) 6 Crimina/ Law Forum 473.

I9 Some police officers are not judicial police, and some non-police have the status of judicial police (eg some customs officers).

2O In the original Napoleonic code the investigating magistrate was supposed to supervise and control every case, but now he is only involved in about IO% of cases in Belgium, and even fewer in France.

2I Much duplication results, and many reform proposals are aimed at cutting out the duplication by either personal contact or by skipping some of the steps in favour of immediate appearance before a court.

Prosecutors are sometimes known as the Magistrature debout (standing magistracy), whereas judges are known as the Magistrature assise (seated magistracy).

In France and Belgium the Procureurs are subject to a Procureur-genera/, and ultimately to the Procureu- Genera/ aupres de /a Cour de Cassation. For some comparative information concerning the functions of the prosecution in various jurisdictions, see JE Hall Williams (ed), The Ro/e of the Prosecutor (I988). See also J Fionda, Pub/ic prosecutors and discretion, A comparative study (I995). (England, Scotland, the Netherlands and Germany; with extensive bibliography).

Note that there is a juge d'instruction in France, Belgium and the Netherlands, but not in the German or Italian system, the latter having abolished the position in favour of a 'juge de /'instruction'. Supervision of the police investigation in Germany and Italy is thus in the hands of the prosecutor alone.

However, as stated, the limited number of jury trials that does occur in certain civilian jurisdictions is subject to special rules or orality, immediacy and continuity, similar to adversarial trials in common law jurisdictions.

On this point, see A Palmer 'Guilt and the Consciousness of Guilt: The Use of Lies, Flight and Other "Guilty Behaviour" in the Investigation and Prosecution of Crime' (I997) 2I Me/bourne University Law Review 95. Also RD Friedman 'Thoughts From Across the Water on Hearsay and Confrontation' (I998) Crim Law Review 697.

It should be noted that decisions in inquisitorial systems are always of the court, and not of individual judges. Thus, although the identity of judges is of course known, and may become widely known to the public via the media, there is probably less of a tendency towards public criticism of individual judges, for instance for perceived inappropriate leniency or inconsistency in sentencing. Adversarial jury trials can give little comfort to individual judges on this score, since sentencing is always a matter for the judges, unlike in the inquisitorial systems.

See C van den Wyngaert, above n I5, Ch 8: Italy: 'The trial was [that is, before the introduction of the I988 Code of Crimina/ Procedure] basically conducted on the basis of this dossier and the elements collected in the dossier by the public prosecutor constituted the evidence for the prosecution. The new Code of Crimina/ Procedure has abolished this system, and requires all evidence to be produced in court, in front of the trial judge, who must evaluate and assess it on the basis of the initiatives of the parties and of the confrontation between them (iudici fit probatio). The legislator wished to avoid the situation in which preliminary investigations conditioned the trial and influenced the trial judge. However, recent /egis/ative reforms and deve/opments in case-/aw have great/y mitigated this ru/e, fo//owing the princip/e that evidence shou/d not be dispersed (art 500) [emphasis added]' (art 235). There are two exceptions to this rule. The first is the incidente probatorio: this is a procedure 'which can be used if there is a risk that evidence available during the preliminary investigation may be dispersed by the time the case is referred to the trial court. In such cases, the evidence may be produced before the judge for the preliminary investigations, in the same way as the evidence would be produced before the trial judge, with the exception, however, that the incidente probatorio takes place in camera' (art 235).

As to the limitations imposed by the Constitution of the Commonwealth, section 8O, in relation to indictable offences against Commonwealth laws, see Cheat/e v The Queen (I993) I77 CLR 54I. Note also that, where separation of powers in enshrined in the Constitution, there may be a limit on the powers of the Parliament to determine the laws of criminal procedure, since such determination may be within the province of the judicial power.

3O See further below; as stated above, such a system applies in inquisitorial jurisdictions that retain trials by jury for major offences (eg Belgium and France).

3I Apparent admiration for this position seems to have swept through the media at the time of the investigation into the death in a motor vehicle accident in France of Diana, Princess of Wales.

With the introduction of the new Code of Crimina/ Procedure of I988; see above n 28. It was felt desirable to maintain a stricter separation between investigative and judicial functions.

This term is difficult to translate; the Italian term is guidici per /e indagini pre/iminari, or judge for the preliminary investigations, as opposed to the investigating magistrate, the giudice istruttore (now abolished). In French, the distinction is made between the juge d'instruction (investigating magistrate, as at present), and the juge de /'instruction (judge or magistrate of the investigation, as proposed by some).

For instance, under this model, police conduct during the investigation is circumscribed not so much by specific statutory rules, but by the - at times uncertain - evidentiary rules applying to the exclusion of illegally or improperly obtained evidence.

The Po/ice Powers and Responsibi/ities Act 1997 (Qld) is an example of a clarifying statute of limited scope in this area. However, its consequences are not directly related to the trial, but to disciplinary matters; in other words, although it regulates police conduct, it does not regulate criminal proceedings directly.

Indeed, even in Italy, where the adversarial system was adopted (see above n 28), the guilty plea was not.

See De Smet, above n I4.

Ibid.

Ibid. See also K Mack and S Roach Anleu, 'Reform of Pre-Trial Procedure: Guilty Pleas' (I998) 22

Crimina/ Law Journa/ 263.

4O See P Corso, Ch 8 'Italy' in van den Wyngaert above n I5, 223-259.

4I See eg Palmer, above n 26; and Friedman, above n 26. See also Sir Richard Eggleston, Evidence, Proof and Probabi/ity (I978)

The French Commission Delmas-Marty found that if an adversarial system were introduced in France this could only be fair if it was underpinned by a system of generous legal aid for all accused persons.

Inquisitorial systems sometimes come in for this latter criticism, since they tend to allow a greater degree of pressure on the accused to confess, through the ready imposition of preventative detention and the right to interrogate an accused after arrest.

On rights issues in criminal procedure, see JA Andrews (ed), Human Rights in Crimina/ Procedure

(I982). (with chapters on many European national systems).

In Europe, a remarkable convergence between systems (that of the UK and those of the civil law jurisdictions) is occurring, through the unified jurisprudence of the European Court of Justice, so that the balance is altering in both kinds of jurisdictions. See eg Jorg, Field and Brants in Phil Fennell (ed), above n I3, ch 3 'Are inquisitorial and adversarial systems converging?'; and Swart and Oung in Phil Fennell (ed), above n I3, Ch 4 'The European convention on human rights and criminal justice in the Netherlands and the United Kingdom'. In Australia as well, there is an increased tendency to refer to individual rights in the context of criminal prosecutions, both at the level of jurisprudence and at the legislative level. Thus there is a degree of congruence between Australia and civil law jurisdictions in terms of certain aspects of the law of criminal procedure as well. See eg Cheat/e v The Queen, above n 29; and Dietrich v The Queen (I992) I77 CLR 292.

See for instance, NSW Law Reform Commission, The Right to Si/ence, Discussion Paper 4I (May I988).

On this point the Report by Leigh and Zedner, see above n 4, makes interesting reading. Preventative detention is obviously sometimes (mis-) used to put pressure on an accused to confess.

That 'strict adherence' is undermined in some ways, however, by the case law: see J White, 'Silence is golden? The Significance of Selective Answers to Police Questioning in NSW' (I998) 72 Austra/ian Law Journa/ 539.

See Corso, above n 4O.

5O See for example, De Smet B, above n I7 (in favour of retention of the positions).

5I Rome statute of the international criminal court (adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the establishment of an International Criminal Court, I7 July I998).

See Corpus Juris introducing penal provisions for the purpose of the financial interests of the EU, Direction Genera/e du Contro/e Financier, under the direction of Professor Delmas and M Marty, Economica Paris I997.

But the Court has found that if the accused has the opportunity at least once to question the evidence against him or adduce evidence in his favour, procedural justice is safeguarded, even if the questions are actually put through a judge (as cited in De Smet, above n I7, 436, 73).

An appropriate taxonomy of criminal conduct would also allow the more rational expenditure of resources, with an eye to optimal outcomes. For instance, now we may spend the least on a first

offence by a juvenile, the most on a recidivistic violent offender: is this the most rational way of expending resources, ie is the gravity of the potential sentence the only indicator of the amount of resources that should be spent? Or should the chances of rehabilitation, the age etc.. in fact lead to greater resources being allocated (not to less, as so often seems to be the case) whatever form the expenditure of those resources may take?

See Corso, above n 4O, 235.

TABLE OF AUTHORITIES

Statutes

Cases

Andrews, JA, Human Rights in Crimina/ Procedure (The Hague; Boston, Martinus Nijhoff, I982).

B De Smet, B, 'De inquisitoire onderzoeksmethode op de beklaagdenbank' ['The inquisitorial method of investigation in the dock'] [I995] Panopticon 34I.

Bradley, CM, 'The Convergence of the Continental and the Common Law Model of Criminal Procedure (I996) 7 Crimina/ Law Forum 47I.

Brown, DK, 'Criminal Procedure, Justice, Ethics and Zeal' (I998) 96 Michigan Law Review 2I46.

Commission des finances [of the French Senat], Rapport d'information (I997/98) 5I3. Davies, Geoffrey, 'Fairness in a Predominantly Adversarial System' (I997) 7I Reform, 47.

De Smet B, 'Le juge d'instruction: obstructionniste ou acteur indispensable dans le proces penal?' (I996) 67 Revue Internationa/e de Droit Pena/ 4I7.

De Smet, B, 'De versnelling van de strafrechtspleging met instemming van de verdachte; is de invoering van een 'guilty plea' naar Angelsaksisch model wenselijk?' ['Accelerating criminal procedure with the consent of the accused; is the introduction of a 'guilty plea' after the Anglo-Saxon model desirable'] (I994) Panopticon 42O.

Delmas, Prof and Marty,